The Spirit of the Laws :: :: University of Virginia Library

I shall make a few reflections upon this subject. The code we have now under the name of St. Louis' Institutions was never designed as a law for the whole kingdom, though such a design is mentioned in the preface. The compilation is a general code, which determines all points relating to civil affairs, to the disposal of property by will or otherwise, the dowries and privileges of women, and emoluments and privileges of fiefs, with the affairs in relation to the police, &c. Now, to give a general body of civil laws, at a time when each city, town, or village, had its customs, was attempting to subvert in one moment all the particular laws then in force in every part of the kingdom. To reduce all the particular customs to a general one would be a very inconsiderate thing, even at present when our princes find everywhere the most passive obedience. But if it be true that we ought not to change when the inconveniences are equal to the advantages, much less should we change when the advantages are small and the inconveniences immense. Now, if we attentively consider the situation which the kingdom was in at that time, when every lord was puffed up with the notion of his sovereignty and power, we shall find that to attempt a general alteration of the received laws and customs must be a thing that could never enter into the heads of those who were then in the administration.

What I have been saying proves likewise that this code of institutions was not confirmed in parliament by the barons and magistrates of the kingdom, as is mentioned in a manuscript of the town-hall of Amiens, quoted by M. Du Cange. [280] We find in other manuscripts that this code was given by St. Louis in the year 1270, before he set out for Tunis. But this fact is not truer than the other; for St. Louis set out upon that expedition in 1269, as M. Du Cange observes: whence he concludes that this code might have been published in his absence. But this I say is impossible. How can St. Louis be imagined to have pitched upon the time of his absence for transacting an affair which would have been a sowing of troubles, and might have produced not only changes, but revolutions? An enterprise of that kind had need, more than any other, of being closely pursued, and could not be the work of a feeble regency, composed moreover of lords, whose interest it was that it should not succeed. These were Mathieu, Abbot of St. Denis, Simon of Clermont, Count of Nesle, and, in case of death, Philip, Bishop of Evreux, and Jean, Count of Ponthieu. We have seen above [281] that the Count of Ponthieu opposed the execution of a new judiciary order in his lordship.

Thirdly, I affirm it to be very probable that the code now extant is quite a different thing from St. Louis' Institutions, It cites the Institutions; therefore it is a comment upon the Institutions, and not the institutions themselves. Besides, Beaumanoir, who frequently makes mention of St. Louis' Institutions, quotes only some particular laws of that prince, and not this compilation. Dfontaines, [282] who wrote in that prince's reign, makes mention of the first two times that his Institutions on judicial proceedings were put in execution, as of a thing long since elapsed. The institutions of St. Louis were prior, therefore, to the compilation I am now speaking of, which from their rigour, and their adopting the erroneous prefaces inserted by some ignorant persons in that work, could not have been published before the last year of St. Louis or even not till after his death.